Valeria (Migration)
[2025] ARTA 2118
•3 July 2025
VALERIA (MIGRATION) [2025] ARTA 2118 (3 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Belinda Valeria
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2508655
Tribunal:Senior Member K. Raif
Place:Sydney
Date: 3 July 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
Statement made on 03 July 2025 at 1:34pm
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application – bogus document – identity details – previous period of overstaying under another identity – previous removal from Australia – marriage to an Australian citizen – financial hardship – family care commitments – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 48, 101-105, 107, 109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criteria 4014, 40120; Schedule 5, Special Return Criteria 5002; r 2.41CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF REASONS
Application for review
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Indonesia. She was granted the Spouse visa in July 2023. In October 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant had not complied with s 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse Mr Cheung. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant previously made applications for Visitor visas in May 2016 and February 2017 and for Student visas in August 2016, May 2017 and September 2019. The applicant made the application for the Partner visa on 10 March 2020.
The primary decision record indicates that when applying for the Visitor visa in May 2016, the applicant
-Gave her name as Belinda Valeria, dob 14/2/81
-Provided her passport number
-Stated that she had not
obeen known by any other name
obeen removed, deported or excluded from any country including Australia
ooverstayed a visa in any country including Australia
obeen in Australia and not complied with visa conditions or departed Australia outside the authorised period of stay
The applicant signed a declaration that the information in her application was complete, correct and up to date.
In support of the application, the applicant provided her passport and national ID card, a birth certificate and family card, all identifying her as Belinda Valeria. The application for the Visitor visa was refused in May 2016.
In August 2016 the applicant made the application for the Student visa. In that application the applicant also referred to her passport issued in January 2016. She stated that she had not been known by any other name. The applicant did not answer a question whether she had previously travelled to Australia, or applied for an Australian visa. With respect to countries previously visited, the applicant referred to the Netherlands and Malaysia. The applicant also stated ‘no’ in response to the questions whether she
-ever held an Australian visa,
-had ever been to Australia or another country and not complied with visa conditions or departed outside the period of authorised stay,
-has ever been removed, deported or excluded from any country including Australia,
-had ever overstayed a visa in any country including Australia.
The applicant signed the declaration that the information she supplied was complete and correct. The applicant submitted in support of her application a copy of the same identity documents as were submitted with the Visitor visa application lodged in May 2016, including her passport, national ID card, birth certificate and family card. The applicant’s application for the Student visa was refused.
In February 2017 the applicant made the application for a Visitor visa. In that application, the applicant gave her personal details (name, date of birth and passport details) The applicant also stated that she had not
obeen known by any other name
obeen removed, deported or excluded from any country including Australia
ooverstayed a visa in any country including Australia
obeen in Australia and not complied with visa conditions or departed Australia outside the authorised period of stay
The applicant signed a declaration that the information in her application was complete, correct and up to date. The applicant submitted in support of her application a copy of the same identity documents as were submitted with the earlier applications, including her passport, national ID card, birth certificate and family card. The applicant was granted the Visitor visa on 13 February 2017.
On 4 May 2017 the applicant made the application for the Student visa. In that application the applicant gave her personal details and details of her passport. The applicant stated that she had not been known by any other name. In response to questions about countries she had visited, the applicant referred to the Netherlands and Malaysia. The applicant stated that she had not
obeen removed, deported or excluded from any country including Australia
ooverstayed a visa in any country including Australia
The applicant signed a declaration that the information she provided was complete and correct. The applicant submitted in support of her application a copy of her passport, national ID card and family card. The applicant was granted the Student visa on 4 July 2017.
On 4 September 2019 the applicant made the application for another Student visa. In that application, the applicant gave her personal details (name, date of birth and passport details) The applicant also stated that she had not
obeen known by any other name
obeen removed, deported or excluded from any country including Australia
ooverstayed a visa in any country including Australia
In relation to countries previously visited, the applicant referred to the Netherlands and Malaysia.
The applicant signed a declaration that the information in her application was complete, correct and up to date. The applicant submitted in support of her application copies of her two passports issued in 2016 and 2020. The applicant was granted the Student visa on 18 October 2019.
On 10 March 2020 the applicant made the application for a Partner visa. On the application form the applicant gave her personal details and details of her passport. The applicant stated that
-she had not been known by any other name
-in response to a question about the countries country where she lived for more than 12 months, the applicant referred to Indonesia (from January 2010 to March 2017) and Australia
-the applicant stated that she had not
obeen removed, deported or excluded from ay country
ooverstayed a visa in any country
The applicant signed a declaration confirming that the information she provided was complete and correct in every detail. In support of the application the applicant provided copies of her two passports, national ID card, birth certificate and family card. The applicant was granted the temporary Partner visa on 24 May 2021.
In March 2022 the applicant provided additional documents in support of the permanent Partner visa. In that application the applicant gave her personal details and passport details. The applicant stated that she has not
-been known by any other name
-been removed, deported or excluded from any country
-overstayed a visa in any country
The applicant signed a declaration confirming that the information she provided was complete and correct in every detail. The applicant was granted the Permanent Partner visa on 18 July 2023.
The primary decision record indicates that in October 2023 the Department conducted biometric search on the applicant’s facial image within Departmental records. The search indicated a match with the facial image in the name of Linda Lieuw (dob 4/3/77). It is noted that the forensic examination assessor concluded the two images represented the same person.
Departmental records show that
-in May 2017 the applicant lodged an application for a Student visa using the same email address as was used by Linda Lieuw when booking flights from Sydney to Jakarta.
-In September 2019 the applicant applied for the Student visa using the same email address and in March 2020 the applicant submitted Form 80 using the same email address as was used by Linda Lieuw.
Departmental records show that under the name of Linda Lieuw, the applicant
-was granted a three month Tourist visa in December 1997 and arrived in Australia in February 1998. That visa expired in May 1998 but the applicant did not leave Australia until August 1998.
-In July 2009 the applicant made the application for a Student visa which was granted on 30 July 2009. The applicant arrived in Australia in September 2009. The visa expired in December 2010.
-In July 2015 the applicant was arrested by the police for theft and she was subsequently detained as an unlawful non-citizen.
-In August 2015 the applicant was issued with the Notice of Intention to Remove from Australia which also informed the applicant she would be subject to Special Return Criteria 5002 and PIC 4014. The applicant acknowledged receipt of the Notice and she was removed from Australia in August 2015.
The delegate found that the applicant had been known by another name and had overstayed the Australian visas on two occasions, with the second time for a period exceeding four years. She had also been removed from Australia.
In her response to the NOICC the applicant agreed that she was previously known as Linda Lieuw, born in March 1977, and that she failed to declare that identity in her various visa applications. The applicant states that she had experienced persecution in Indonesia and for that reason changed her name. The applicant states that she did not understand the seriousness of not disclosing her previous identity.
The applicant provided a lengthy submission to the Tribunal on 2 July 2025, a day before the scheduled hearing. In her written submission to the Tribunal, the applicant referred to the circumstances of non-compliance and her personal circumstances, which are addressed more fully below. The applicant concedes that she was previously known as Linda Lieuw.
Having regard to the facial recognition report which identified the applicant’s photograph and Linda Lieuw’s photographs as depicting the same person, the use of the same email address and, crucially, the applicant’s own admissions to the delegate and the Tribunal that she was previously known by the name of Linda Lieuw, the Tribunal is satisfied that the applicant previously used that name, applied for and was granted Australian visas under that identity, that she had travelled to Australia and on two occasions had overstayed her visa before being removed from Australia.
The Tribunal finds that the applicant gave incorrect answers on the application forms in relation to the several applications identified above when she claimed she was not known by any other name, had not previously travelled to Australia, had not overstayed her visas and that she had not been removed from Australia. The Tribunal finds that the applicant gave incorrect answer when claiming she had previously visited the Netherlands and Malaysia and by not referring to Australia. The Tribunal finds that the applicant completed the application forms in a way that incorrect answers were given or provided (as set out in the NOICC).
For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:
The correct information
The correct information is that the applicant had been known by another name. Under a different identity, she sought and was granted Australian visas. She had previously resided in Australia. She had applied for, and was refused, Australian visas. She had overstayed two of her visas and had been removed from the country.
The content of the genuine document (if any)
This is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
In her submissions to the delegate and the Tribunal the applicant states that she would have been granted a visa anyway because she is in a genuine relationship with his partner. However, a genuine spousal relationship is not the only criterion for the grant of the Spouse visa. An identity assessment is an important factor in every visa application and the applicant would have been required to meet the identity requirements in PIC 4020(2A). If it was known to the decision maker that the applicant had previously used a different identity, and different identity documents, that may have raised questions about the applicant’s true identity.
The Tribunal is also mindful that the issue here is not only the Partner visa but several other visas that the applicant had previously applied for and was granted, such as the Visitor and Student visas. The information in the primary decision record indicates that following her departure from Australia in 2015, the applicant would have been subject to an exclusion period. It is thus possible that she would not have been eligible for the grant of the Visitor visa and the Student visa in 2017 or at the very least, there may have been a more stringent assessment in relation to the special return criteria in those applications if it was known that the applicant had previously travelled to Australia and had overstayed her visas and was required to leave. By not disclosing her previous visits to Australia and overstay, the applicant withheld information that was relevant to the decision-maker’s assessment whether the applicant met the special return criteria and the public interest criteria at least in relation to the visitor visa and the student visa.
The applicant’s claim is that she was entitled to the grant of the Partner visa anyway even if the correct information was known because she was in a genuine relationship. In the Tribunal’s view, that overlooks the fact that she was granted several other visas in the past that she may not have been entitled to and, in relation to the Partner visa, the use of a different identity by the applicant may have necessitated a more thorough assessment of her ability to meet PIC 4020(2A).
In any case, whether or not the applicant would have been entitled to be granted the Partner visa, or any other visa, is not what the Tribunal is required to consider. It is not necessary for the Tribunal to determine whether the applicant would have been granted the visas, if the correct information was known. The issue is whether the decision to grant the visas was based on incorrect information.
For the reasons set out above, the Tribunal finds that the decisions to grant the visas were based, wholly or partly, on incorrect information.
The circumstances in which the non-compliance occurred
The applicant claimed in her response to the NOICC that she had experienced persecution and various forms of harm in Indonesia due to her Chinese origin and for that reason she had changed her name. In her submission to the Tribunal received on 2 July the applicant also claims that she had experienced severe persecution and discrimination and violence due to her Chinese heritage and her change of name was not based on a desire to hide her previous identity or conduct any criminal activity. The applicant refers to the situation in Indonesia and states that she decided to use a different name in response to threats because of her identity and to reduce the risk of being targeted. In oral evidence the applicant also told the Tribunal that the change of name was due to her fear of harm rather than an intention to mislead the Department.
The Tribunal does not accept the applicant’s explanations. Firstly, the primary decision record indicates that before the applicant was removed from Australia in August 2015, she was interviewed and expressly stated that there were no reasons why she could not return to Indonesia. It is recorded that the applicant had cooperated with removal by purchasing her own ticket. In the Tribunal’s view, if the applicant did genuinely experience any harm or persecution in Indonesia as she claims, she would have provided that information in response to that very express question prior to her removal in 2015.
The applicant told the Tribunal that she did not have a full understanding at the time, did not know about protection visas and had limited English but the Tribunal is of the view that if that was the case, the Immigration officers would have utilised an interpreter, as is (and has always been) standard practice. The Tribunal does not accept the applicant had misunderstood the question. The Tribunal is of the view that her claim in 2015 that she had no concerns about returning to Indonesia contradicts her present evidence that at that time, she obtained a different identity in order to avoid harm due to her ethnicity.
Secondly, the applicant not only changed her name (to ensure, as she claims, that it did not sound Chinese) but she also changed her date of birth. There is no reason, in the Tribunal’s view, for the applicant to change her date of birth in order to avoid being persecuted on the basis of her ethnic origin. The applicant’s evidence is that she did not change the name officially but happened to have a friend who organised a new birth certificate for her on the basis of which she had obtained a new passport. The fact that the applicant did change her date of birth as well as the name suggests to the Tribunal that she did that so as not to disclose her true identity and immigration history rather than for any other purpose.
Thirdly, and most importantly, the issue here is not why the applicant had changed her name but why she failed to disclose her identity, and her previous visit to Australia and overstay and removal from Australia in her multiple visa applications. The Tribunal is mindful that many of those applications were made in Australia, when the applicant should not have experienced any fear of harm. Yet, the applicant repeatedly stated in her multiple applications that she had not been known by any other name, that she had not been to Australia before and that she had not overstayed any visa or been removed. Notably, in support of her Partner visa application lodged in March 2020 the applicant stated that she had been residing in Indonesia until 2017. That is, not only did the applicant fail to disclose her residence in Australia but she had deliberately provided false information about residing overseas – when she was in fact residing in Australia – so as to hide her immigration history and her previous identity.
In oral evidence the applicant told the Tribunal that she was traumatised and wanted to start afresh and she did not disclose the true information to her lawyer. In the Tribunal’s view, the applicant’s decision to ‘start afresh’ and her preference to live in Australia do not justify the consistent and, in the Tribunal’s view, deliberate misinformation in her dealings with the Department. The applicant told the Tribunal that she wanted to escape Indonesia to seek protection because of the situation in her home country. She claims she did not know about protection visas and her then agent recommended that she should apply for a Student visa instead. As noted above, the Tribunal does not accept that the applicant’s claimed fear of persecution (and the Tribunal does not necessarily accept she had a genuine fear of persecution) justifies the provision of incorrect answers, and the provision of deliberately false information in multiple visa applications.
The applicant told the Tribunal that she had changed her name so that she could escape and seek protection in Australia. She stated in her oral evidence to the Tribunal that she asked a friend to arrange a new birth certificate for her. When asked why she changed her date of birth, as well as the name, the applicant stated that the friend arranged everything as she just wanted to escape. The Tribunal does not accept that the applicant changed her name and date of birth so as not to appear Chinese. In the Tribunal’s view, if that was a truthful reason, she may have changed her name but not the date of birth. The fact that the applicant had changed both her name and her date of birth strongly suggests to the Tribunal that she had done so to avoid detection by Immigration authorities, rather than as a means of escaping Indonesia.
The Tribunal also does not accept the applicant’s claim that she was unaware of the exclusion period. The primary decision record indicates that she was given Notice of intention to Remove in 2015, which including information about the exclusion period, and she had signed the papers. The applicant claims she did not have sufficient English to understand the requirements but the Tribunal does not accept that explanation, noting that the applicant had signed the papers (which she may have chosen not to do if she had no understanding of their content) and also because the applicant would have had the opportunity to obtain an explanation after being given these documents. The Tribunal is of the view that in 2015 the applicant was given notice of the exclusion period and, having signed the papers, she was aware that it would apply to her. She sought other visas in 2017, within the exclusion period. In the Tribunal’s view, that also indicates that the applicant’s change of identity was arranged in order to avoid detection by Immigration (as she knew she was not eligible to get the visas in 2017 in her true identity) rather than for any other reason now suggested by the applicant.
As for the applicant’s claim that she did not understand the seriousness of not disclosing the different identity, the Tribunal does not accept that evidence as the application form, which the applicant had signed, expressly refers to the possibility of visa cancellation for provision of incorrect answers.
The present circumstances of the visa holder
In her response to the NOICC the applicant refers to her marriage to the Australian citizen and their cohabitation since 2019. In her evidence to the Tribunal the applicant states that she plays a ‘vital role’ in managing the household’s financial responsibilities with her partner. They hold a joint mortgage and she is instrumental in meeting repayments and her financial support is instrumental in meeting the household expenses. The applicant states that if her visa is cancelled, her husband would be forced to shoulder the financial burden and his income may not be adequate to cover all the expenses and she told the Tribunal she is scared that her husband may lose the family home. The applicant refers to her husband’s decline in income due to the recent change of employment and states that if her partner gets the new job, his income would be unstable and he might not be able to pay the mortgage. The Tribunal accepts that if the applicant was to leave Australia as a result of her visa being cancelled, this may have significant financial repercussions for her family and may cause financial hardship to the applicant’s partner.
The applicant refers to the emotional strain on her partner, should her visa be cancelled. She also refers to the crucial role she plays in supporting her husband’s elderly parents and the applicant provided evidence concerning their health and the need for ongoing support. A report by Dr Iy confirms that the applicant provides care and support to her mother in law. The applicant told the Tribunal that she is the primary carer for her mother in law, she cooks for her, does cleaning and laundry and buys groceries and takes her to doctor appointments. The Tribunal accepts that evidence.
The applicant also states that her support for her parents in law allows her husband to continue working and due to his own health conditions, her husband cannot act as a carer, so there are no other carers available. She told the Tribunal about her partner’s health stating that he cannot look after his mother. She said that her mother in law does not trust outside help and has not applied for a Home Care Package. The Tribunal accepts that the applicant provides significant care to her parents in law and the Tribunal is prepared to accept that at present, she acts as the primary caregiver (subject to her work commitments) and that other care has not been explored and is not presently available. The Tribunal is prepared to accept that the applicant’s spouse has limited ability to support his parents and that he may give up full-time employment if he was to take on the carer role.
The applicant refers to her study in Australia and her employment and income. The applicant refers to her important role in the company and the payment of taxes. She states that she is an ‘essential worker’. In her evidence to the Tribunal the applicant states that she is employed as a business manager and her role is vital to the efficient functioning of the company. The applicant provided employment references from her current and past employer. The Tribunal accepts the applicant’s evidence concerning her employment and contribution to the company. As the applicant has the option of leaving her employer at any time, the Tribunal is of the view that it is highly likely the company would have arrangements in place for the replacement of staff, including ‘essential’ employees. Nevertheless, the Tribunal accepts the applicant’s evidence about her employment and contribution to the employers and to the community through employment.
The applicant refers to her settlement in Australia and the relationships and ties she has formed in this country. The Tribunal accepts that the applicant has been living in Australia for a number of years and that she has strong family, community, employment and social ties.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act. The applicant has conceded her non-compliance in the response to the NOICC and evidence to the Tribunal.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant told the Tribunal that she obtained the birth certificate in the new identity with the help of a friend and she did not change her name through a formal process. She also concedes that her birth certificate contains an incorrect date of birth and she told the Tribunal that had to pay extra to get the birth certificate.
The Tribunal finds that the applicant was aware that the birth certificate was bogus document (because it is counterfeit or has been altered by a person who does not have authority to do so). The applicant also told the Tribunal that she obtained her passport on the basis of the birth certificate and the Tribunal finds that her passport is a bogus document as it was issued on the basis of a false or misleading statement. The Tribunal finds that the applicant gave bogus documents (birth certificate and passport) with her various visa applications and that indicates non-compliance with s. 103 of the Act.
The time that has elapsed since the non-compliance
The first visa application was made in 2016 and the most recent submission of documents occurred in March 2022. About nine years passed since the first non-compliance and about three years since the most recent non-compliance.
In her submission to the Tribunal the applicant states that other than the act of changing her name, she has followed the law and respects the law and is of good character. In the Tribunal’s view, that claim shows a misunderstanding by the applicant of her non-compliance. As noted above, the issue is not the change of name, but the applicant’s persistent failure to disclose that information and her immigration history and the provision of incorrect answers in various visa applications.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant refers to her employment as an essential worker and the contribution she has made to her employer, as well as through the payment of taxes. The applicant refers to her past study, leading to her employment. The applicant refers to the contribution she has made within the family, including in supporting her partner and parents in law. The Tribunal accepts the applicant has contributed to the community through her employment, payment of taxes, support for the elderly parents in law, and various financial contributions.
The applicant refers to the contribution to the household expenses such as strata and household expenses0 and the payment for the mortgage. While the Tribunal accepts that the applicant makes these payments, the Tribunal does not consider such payments constitute contribution to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s 140.
There are no persons whose visas would be subject to consequential cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
There are no children who would be affected by the cancellation of the visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant refers to experiencing discrimination in Indonesia due to her Chinese ethnicity. The Tribunal found the applicant’s claims to be generalised in nature and addressing the circumstances of the Chinese minority as a whole, rather than her own circumstances. The Tribunal is not satisfied on the basis of these generalised statements that Australia’s non-protection obligations engaged in this case.
The Tribunal also notes that the applicant has had multiple opportunities to seek protection in Australia. She has not done so. In the Tribunal’s view, if the applicant had a genuine fear of harm, she would have sought protection in Australia. Significantly, the primary decision record incites that when the applicant was interviewed in 2015 prior to her removal, she expressly stated that she had no fear of harm upon returning to Indonesia. The applicant’s explanation concerning her lack of understanding has been addressed (and rejected) above.
The applicant told the Tribunal that she does not wish to return to Indonesia as she has not been there for many years and her family and responsibilities are in Australia. In the Tribunal’s view, these matters do not give rise to Australia’s non-refoulement obligations.
In her submission to the Tribunal dated 30 June 2025, the applicant does not raise any claims that may give rise to non-refoulement obligations. In the course of the hearing the applicant’s representative also confirmed that non-refoulement claims are not made by the applicant. On the evidence before it, the Tribunal does not consider that Australia’s non-refoulement obligations arise in this case. The Tribunal is also mindful that the applicant is eligible to seek a protection visa if she genuinely has any fear of harm.
As for the principles of family unity, the Tribunal notes that the applicant is eligible to seek other visas to enable her to return to Australia in the future and be reunited with her partner. The Tribunal does not consider that the family unity obligations would be breached as a result of the cancellation.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and could be detained and removed from Australia. The applicant would have limited options to make other visa applications onshore due to the operation of s 48 and would be subject to an exclusion period in PIC 4013 in relation to some future visa applications. The applicant will also lose the entitlements she has acquired as a permanent resident of Australia and will not be eligible for Australian citizenship if her visa is cancelled.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
For the reasons set out above, the Tribunal accepts that considerable hardship would be caused to the applicant and her family in Australia if her visa is cancelled and if she has to leave Australia as a result. In particular, the Tribunal accepts that the applicant’s spouse relies on her financially and may experience significant financial hardship if the applicant is not able to contribute financially to household expenses. The Tribunal accepts the evidence about the health of the applicant’s spouse and parents and accepts that the applicant acting as a primary caregiver to her mother in law and accepts that the applicant’s departure from Australia may result in the removal of practical and physical assistance that she provides. That would also cause significant hardship to the family in Australia.
The applicant provided with her submission to the Tribunal a character reference and the Tribunal accepts that the writer believes the applicant to be a person of good character.
The applicant has expressed regret and remorse about the provision of incorrect answers. The Tribunal finds that evidence problematic, noting that the remorse has only been expressed in response to the NOICC or since it was issued. Given the lengthy time since the initial non-compliance, the applicant had ample time to express remorse for her conduct and take steps to rectify it by informing Immigration about her non-compliance. She has not done so, instead repeating the same falsehoods in multiple subsequent visa applications and she told the Tribunal she was too scared of being removed from Australia and that is the reason she has not made contact with Immigration.
The delegate also refers to the applicant’s past non-compliance with condition 8202 while a holder of a Student visa and the applicant told the Tribunal that she could not study due to financial stress and emotional hardship. She claims she did not know how to approach anyone to resolve the situation. The primary decision record indicates that the applicant had overstayed her visas twice when previously in Australia, including for a lengthy period exceeding four years. In the Tribunal’s view, such conduct indicates the applicant’s general disregard for the Australian immigration laws.
The applicant told the Tribunal that her first overstay was in 1998 during the riots in Indonesia and she was too scared to return. The applicant states that she did not make any inquiries about regularising her status during the period of her unlawful stay. The applicant told the Tribunal that during the second period of overstay, she went through difficult time emotionally and financially and could not attend school. The applicant states that she was alone and did not know what she was doing and had no knowledge of how to deal with the situation. In the Tribunal’s view, none of these matters (even if true) justify her unlawful stay.
The applicant states that she acted out of fear and not to manipulate the system. The Tribunal does not accept that evidence, noting that by the time the applicant was making multiple visa applications in Australia, she was not subjected to any harm in Australia and in the Tribunal’s view, there was no justification for the persistent provision of incorrect information in multiple visa applications.
The applicant’s partner Mr Cheung told the Tribunal that the applicant changed her name to avoid the harm in Indonesia and he was not aware of that until the NOICC was issued.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has not complied with s. 101 of the Act and that there are grounds for cancelling her visa.
The Tribunal considers that there are strong grounds why the visa should not be cancelled. In particular, the Tribunal accepts that significant hardship would be caused to the applicant and her family in Australia as a result of the cancellation. That includes financial, practical, emotional and other forms of hardship. The Tribunal accepts that the applicant contributes to the household expenses and mortgage repayments and acknowledges the applicant’s evidence that her partner may not have sufficient income to meet these on his own. The Tribunal accepts that the applicant is a primary caregiver for her mother in law. The Tribunal is prepared to accept, for the purpose of this review, that the applicant and her partner are in a genuine and long term relationship. The Tribunal accepts the applicant’s evidence about the hardship that would be caused to her and others by the cancellation and finds that this consideration weighs heavily against the cancellation.
The Tribunal accepts that the applicant is settled in Australia and her present circumstances evidence her settlement in this country. She has meaningful and gainful employment, a relationship with an Australian citizen partner, and supports his family. The Tribunal accepts that the applicant’s present circumstances are such that these may justify the setting aside of the cancellation. A number of years passed since the non-compliance. The Tribunal also accepts that the applicant has made a contribution to Australia through her employment, payment of taxes, carer responsibilities and other activities. This also weighs against the cancellation.
The Tribunal acknowledges that there would be serious legal consequences to the cancellation, in particular limiting the applicant’s future visa options. All these factors weigh heavily against the visa cancellation.
There are a number of considerations that are neutral. Thus, the Tribunal has determined that the cancellation will not breach Australia’s international obligations and there are no consequential cancellations.
The Tribunal also finds that there are very strong reasons in favour of the cancellation. Firstly, the Tribunal gives significant weight to the circumstances in which the non-compliance occurred. The Tribunal has found that the applicant had deliberately withheld information about her different identity and previous residence in Australia in a number of visa applications. She had done so over a period of about five years. The Tribunal does not accept the applicant’s explanation that she had done so due to the fear of persecution in Indonesia due to her Chinese ethnicity. This is because the applicant had denied having any fear of persecution in her 2015 interview, because many of the applications in question were made in Australia and not in Indonesia and because the applicant changed her entire identity (including her date of birth and not only her name). The Tribunal has also formed the view that the applicant was aware of the exclusion period when she made the applications in 2017 and the fact that she was making these applications suggests that the change of identity was done to avoid detection by Immigration and to avoid the exclusion period rather than for any other reason.
The Tribunal has formed the view that the applicant changed her identity in order to secure another visa to Australia and not for the reasons she now claims. That is, she had taken positive steps (such as obtaining new identity documents) in order to mislead Immigration and secure her return to Australia. She then consistently provided incorrect information in multiple applications to enable her to remain in Australia. In the Tribunal’s view, these circumstances weigh very heavily in favour of the cancellation.
The Tribunal places significant weight on the fact that the decisions to grant the visas were based on incorrect information. While the applicant claims her relationship with the sponsor is genuine (and the Tribunal accepts that this may be so), the genuineness of the relationship is not the only criterion for the grant of the Partner visa and that claim overlooks several other visas that were granted to the applicant that were not based on the existence of that relationship. The Tribunal considers it highly problematic that the decision-makers were denied the opportunity to fully assess the applications against the visa criteria, including identity requirements and special return criteria, due to being unaware of the use of the different identity by the applicant. In the Tribunal’s view, these circumstances weigh very heavily in favour of the cancellation.
The Tribunal has also formed the view that the applicant had shown a persistent disregard for the Australian laws. She admits she was not studying while holding a Student visa, in breach of visa conditions, and she admits that she had overstayed her visas twice before being removed from Australia in 2015. The Tribunal is unconvinced by the applicant’s explanation that she was not familiar with the law, had limited English and did not know what to do. In the Tribunal’s view, if the applicant had any interest in complying with the law, she could have taken steps to do so, either by making contact with Immigration or by seeking professional help. The applicant also admits that her passport and birth certificates are bogus documents and she had used these documents in her multiple visa applications, indicating that she had also failed to comply with s. 103 of the Act. In the Tribunal’s view, these circumstances weigh very heavily in favour of the cancellation.
In the circumstances of this case, the Tribunal has decided to give greater weight to the factors that weigh in favour of the revocation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
Date(s) of hearing 3 July 2025
Representative for the Applicant: Mr Alim Lim
0
1
0